What Is the Future of Roe Vs. Wade?

Friday, July 27, 2018

On June 27, Supreme Court Justice Anthony Kennedy made the surprise announcement that he was resigning from his lifetime position. The moderate will step down at the end of July, which had many people wondering who President Donald Trump would name as his replacement and what that replacement would do for women's rights.

Trump announced in July that he wanted conservative Brett Kavanaugh to take Kennedy’s spot. Kavanaugh has never spoken explicitly about what he would do to abortion law, but he had previously ruled on an abortion case regarding an illegal immigrant seeking to end her pregnancy while in detainment. In his dissent, Kavanaugh said that the government was not obligated to provide "abortion on demand" to the young woman because she was in custody. He appeared more concerned about granting illegal immigrants more rights than the issue of abortion itself, but legal pundits believe that his decision in this case could indicate how he feels about abortion in general.

Before the announcement, Trump said on Fox News that he would like to appoint a justice who believes abortion should be up to the states to decide, not the federal government.

“Roe v. Wade is probably the one that people are talking about in terms of having an effect, but we’ll see what happens. But it could very well end up with states at some point,” Trump said.

Last year, Trump picked a conservative, Neil Gorsuch, to replace Justice Antonin Scalia, and already, Gorsuch’s vote has affected labor unions, gay rights, and big business. With Kennedy’s resignation, experts believe that abortion rights will be the next big issue the Supreme Court will tackle.Vox spoke to several legal experts about what could happen to Roe Vs. Wade, and many agreed that the new justice’s appointment may affect abortion rights but will likely not abolish it nationwide.

“I expect that Justice Kennedy’s departure likely will impact the status of Roe and Casey, though I don’t expect the Court to overturn Roe immediately,” Gillian Metzger, a professor at Columbia Law School told Vox. “Instead, I expect we’ll see more incremental pullback, at least initially. But in practice it will become even more difficult, and in some states practically impossible, for women to exercise the right recognized in Roe and Casey of making the ultimate choice of whether or not to bear a child.”

Mary Ziegler, a professor at the Florida State University Law School, agreed that it is more likely we will see Roe vs. Wade chipped away instead of completely abolished.

“The most recent abortion case strengthened abortion rights, and there has been no groundwork laid for a decision reversing Roe tomorrow. Roberts and Alito have never written an opinion saying Roe should go,” Ziegler said to Vox. “So I think that it is more likely that we will see a more subtle or gradual attack on Roe — a series of cases chipping away at legal abortion. Or an effort to establish that almost no abortion regulations (or literally no abortion regulations) create an undue burden — the standard now used to measure the constitutionality of abortion restrictions.”

Robert Nagel, a professor at the University of Colorado Law School, said that based on precedent, the new Supreme Court Justice would most likely not overturn a previous controversial case at all, out of respect to the court itself.

“It is highly unlikely that replacing Justice Kennedy will result in an overruling of Roe. None of the highly controversial “landmark” decisions of the Warren Court — not Brown, not Miranda, not Baker v. Carr — have been overruled despite the fact that Republican appointees have had a numerical majority on the Court for almost all of the past four and a half decades,” Nagel said to Vox. “There are many reasons for this, but the main reason is that conservative jurists tend to equate the Court’s political standing — its prestige and legitimacy — with the rule of law itself.”